‘What Is The Parody Here?’: Supreme Court Appears Divided On Iconic Whiskey Maker’s Suit Against ‘Poop’-Themed Dog Toy

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  • The Supreme Court heard oral arguments Monday in Jack Daniel’s v. VIP Products, which considered whether a dog toy parody of a Jack Daniel’s whiskey bottle violates trademark law.
  • Justices examined whether the product could fall under “non-commercial” exceptions to trademark law and weighed the case’s broader implications for political and artistic expression as it relates to parodies. 
  • “It’s very important to make sure that trademark law does not supersede robust First Amendment protections,” FIRE Legal Director Will Creeley told the Daily Caller News Foundation.

The Supreme Court’s sense of humor was tested during oral arguments Monday as it heard a case on trademark law and a dog poop-themed parody of America’s best-selling whiskey brand with broader implications for First Amendment rights.

At the center of the Jack Daniel’s v. VIP Products case is a parody of Jack Daniel’s Old No. 7 Tennessee Sour Mash Whiskey: a “Bad Spaniels” dog toy mimicking the bottle’s shape and design, substituting the subtitle with “The Old No. 2 on your Tennessee Carpet.” Jack Daniel’s alleges the toy, which VIP Products began to sell in 2014, violates its trademark and confuses consumers.

The court appeared divided, unsure of how to determine the contours of this particular case — such as whether the dog toy parody’s use of the Jack Daniel’s trademark could be considered a “non-commercial” exception under the Lanham Act, a 1846 law that enables trademark holders to litigate when an infringement is “likely to cause confusion” — and how to deal with its broader First Amendment implications. Not everyone got the joke in the first place.

“What is the parody here?” Justice Elena Kagan asked Bennett Cooper, the lawyer arguing for VIP Products. “Maybe I just have no sense of humor.”

“The parody is to make fun of marks that take themselves seriously,” Cooper replied.

“[Do] soft drink and liquor companies take themselves too seriously as a class?” Kagan continued, noting the company also makes fun of other marks with products like “Canine Cola” and “Mountain Drool.”

“Yes,” Cooper said. “I think there are a lot of products that take themselves too seriously.”

Previously, the district court found the poop-themed dog toy parody could cause consumers to associate Jack Daniel’s with “canine excrement.” But the Ninth Circuit ruled the humorous message was an “expressive work” entitled to First Amendment protections, basing its decision on the Rogers test, which holds that the Lanham Act applies only when the trademark is used in a way that is “not artistically relevant” or that “explicitly misleads” about the work’s source or content.

Justices and courtroom observers managed to keep a straight face for the first few minutes of Jack Daniel’s attorney Lisa Blatt’s time at the podium, as she expounded on the company’s disapproval for associations between its whiskey and dog poop. “Parodies can be confusing” as to the origin of the speaker, she noted — the product could imply Jack Daniel’s endorsement or approval.

“Poop humor has its time and place, particularly for toddlers and young children,” the company’s brief states. “But Jack Daniel’s does not want its customers looking at their whiskey bottles and wondering why in the world Jack Daniel’s is talking about dogs defecating on Tennessee carpets.”

Justice Samuel Alito was incredulous that any reasonable person would make this mistake. “Could any reasonable person think Jack Daniel’s approved the use of this mark?” he asked. “Do you think the CEO is going to say, ‘That’s a great idea.'”

With that, the room broke into laughter. (RELATED: Supreme Court Hears Pivotal Water Rights Case As Drought Grips Western States)

Jack Daniels

NEW YORK, NY – FEBRUARY 20: A general view of atmosphere at a party hosted by Jack Daniels and New York Magazine celebrating Jack Daniels’ Sinatra Select at By Robert James Boutique on February 20, 2014 in New York City. (Photo by Stephen Lovekin/Getty Images for New York Magazine)

Justices pressed both sides on whether they should rule narrowly, dealing only with this case’s particulars, or broadly, throwing out the Ninth Circuit’s use of the Rogers test.

Justice Sonia Sotomayor expressed hesitancy to disregard the test, posing hypotheticals where it could be crucial. Suppose an activist takes a political party’s animal logo (such as the Republican party’s elephant) and depicts it as drunk on a t-shirt, she said, adding the slogan, “Time to sober up America.”

If people are confused about the source and think the political party gave the activist permission to copy the logo, would this require a full trial?

“First off all, that’s funny,” Blatt said. But the fact that it is funny is “not relevant” — what matters is whether or not people understand that the one making the joke is not the brand.

Bennett Cooper, representing VIP Products, preferred the Rogers test to stay in place, even when Justice Neil Gorsuch signaled he could secure a win by disregarding it.

“I’d prefer more of a landslide,” Cooper said. His core concern was the “burden of litigation,” which can “chill speech.” Rogers, he argued, provides a simple and fair test.

Gorsuch nevertheless seemed to prefer remanding the case to the lower court with instructions to disregard the Rogers test and give more consideration to its uniqueness as a parody.

Justice Ketanji Brown Jackson also seemed to favor a narrow ruling, questioning why the Court shouldn’t just consider if customers would be confused about the origin of product, rather than applying a test that doesn’t seem to fit. Justices Brett Kavanaugh and Amy Coney Barrett were silent, with Barrett stepping out for a few minutes of the arguments.

Despite the case’s air of levity, weighty issues were at stake.

Blatt raised the issue of trademarks becoming entangled in more objectionable expressions, “pornography and poison,” arguing that trademarks themselves are expressive and have speech rights.

Several amicus briefs filed in the case also tackle free speech issues the case could impact.

“Eliminating the Rogers test would upend decades of nationwide precedent and make it signifcantly [sic] easier for trademark owners to chill critical and comedic expression,” the Electronic Frontier Foundation argues in its brief. “Political expression can come in many forms, and expression in a non-traditional communicative medium deserves the same First Amendment protection as a protest sign or a song.”

The Foundation for Individual Rights and Expression (FIRE) also submitted a brief because of how it has seen trademark law used like “a sword” to shut down speech on college campuses.

“It’s very important to make sure that trademark law does not supersede robust First Amendment protections,” FIRE Legal Director Will Creeley told the Daily Caller News Foundation. “We’ve seen in the college and university context that university administrators are willing to wield trademark policy like a sword to shut down unpopular speech or silence criticism of their institutions.”

Creeley said FIRE was “very pleased” to hear Alito reference an example from its brief.

“Predicting how the Court will rule is beyond my pay grade, but I was encouraged by the concern voiced by several Justices about the First Amendment implications of the position advanced by Jack Daniel’s and the United States,” Creely said. “All of us here at FIRE were especially pleased to hear Justice Alito pose a hypothetical based on FIRE’s defense of two Chicago State University professors threatened by administrators with trademark infringement claims for operating an off-campus blog that criticized the school’s leadership as corrupt and incompetent.”

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